In an action by the City of Topeka to enforce a public nuisance ordinance that prohibits
the maintaining on private property of any garbage, rubbish, trash, refuse, junk, or other listed
items which create "an unsightly appearance," the record is examined and it is held: (1) The
ordinance as applied to defendant under the facts of this case is not unconstitutionally vague;
(2) the ordinance does not violate the due process rights of the defendant under the United
States Constitution; (3) particularly in urban areas, offensive and unsightly conditions do have
an adverse effect on people. Beauty and attractive surroundings are important factors in the
lives of the public. The general welfare is promoted by action to insure the presence of such
attractive surroundings; and (4) the district court did not err: (a) by not making findings of fact
and conclusions of law and (b) in finding that there was substantial competent evidence that
defendant violated the ordinance.

James S. Willard, of Scott, Quinlan & Hecht, of Topeka, argued the
cause, and Deborah L. Hughes, of
the same firm, was with him on the brief for appellant.

Mary Beth Mudrick, assistant city attorney, argued the cause and was on the
brief for appellee.

The opinion of the court was delivered by

SIX, J.: This case concerns the constitutionality of a city's public nuisance ordinance
prohibiting the maintaining on private property of any garbage, rubbish, trash, refuse, junk, or
other listed items which create "an unsightly appearance." The attack on the ordinance is
based on a claim of vagueness linked to a claimed violation of defendant's due process rights
under the Fifth and Fourteenth Amendments to the United States Constitution.

The City of Topeka (City) found that the defendant property owner, Gerald M. Boyles,
violated the City's public nuisance ordinance, codified as Topeka City Code Section 66-25
et.
seq. Specifically, the City found that Boyles violated Sections 66-27(2) and 66-28 by
maintaining a public nuisance. Boyles operates a business in Topeka that is variously
described as a flea market, a second-hand store, and a lawnmower/tiller repair service. On
appeal under K.S.A. 60-2101(d), the district court affirmed the City's finding that Boyles
maintained a nuisance. Boyles appeals the district court's ruling.

Our jurisdiction is based on an order of transfer from the Court of Appeals. K.S.A.
20-3018(c).

Our review of the record reflects that the district court did not have the benefit of
written briefs or any measured discussion by either counsel for the City or for Boyles focusing
on the vagueness argument advanced here. However, Boyles' counsel during oral argument
below referenced the primary question before us. Counsel said, "Our position is that the word
'unsightly' as used in this ordinance could not be constitutional as applied, Your Honor,
because it would not have any sort of objective test whatsoever."

We consider three questions: (1) Is City Code Section 66-27(2) void for vagueness? (2)
Did the district court err by not making findings of fact and conclusions of law? and (3) Did
the district court err in finding that there was substantial competent evidence that Boyles
violated Section 66-27(2)?

Finding no error, we affirm. Section 66-27(2), under the facts here, is constitutional as
applied to Boyles.

FACTS

On September 3, 1998, the City notified Boyles in writing that an inspection of his
property showed a violation of Section 66-27(2). The notice informed Boyles that the
following specific items found outside on his parking lot constituted a nuisance:

A public hearing was held in the Code Compliance Services Division to decide whether
Boyles had violated Section 66-27(2). Boyles attended the hearing and was represented by
counsel. A Code Compliance Order was issued with the finding that items on Boyles'
property created an unsightly appearance, which constituted a nuisance in violation of Section
66-27(2). Boyles was given 20 days to abate the nuisance. The order further stated: "If not
abated, the administrative penalty in the amount of $175.00 will apply in full on October 14,
1998."

Boyles appealed the administrative order to the district court. The district court
affirmed.

DISCUSSION

We first examine whether Section 66-27(2) is void for vagueness and, thus,
unconstitutional as applied to Boyles. Section 66-28 provides that "[i]t shall be a violation of
city ordinance for any person to maintain or permit a nuisance to exist."

Section 66-27(2) says, in part:

"The maintaining or permitting to be or remain on any . . . private
property of any of the following conditions is hereby declared to be and
constitute a nuisance . . . .

In Section 66-25, the City expressed its purpose and intent in adopting Section 66-27(2)
and the other provisions of the public nuisance ordinance:

"The Council of the City of Topeka finds that certain conditions as
hereinafter defined cause annoyance, inconvenience or damage to the pubic
with respect to the public's comfort, health, safety, welfare and enjoyment of
property. . . . [I]t is the purpose and intent of the council of the city to define
and proscribe those conditions which are injurious to the public and which
constitute a public nuisance."

Boyles asserts that the term "unsightly" is vague and subjective. He argues that
ordinary persons could only guess at the meaning of "unsightly" and that the lack of a common
understanding of the term creates the likelihood of arbitrary enforcement.

We are reviewing the constitutionality of an ordinance. Thus, our standard of review is
de novo. City of Wichita v. Edwards, 23 Kan. App. 2d 962, 964, 939 P.2d 942
(1997). We
have a duty to preserve the validity of Section 66-27(2) and to search for ways to uphold its
constitutionality. Here, we must: (1) presume that Section 66-27(2) is constitutional, (2)
resolve all doubts in favor of validity, (3) uphold Section 66-27(2) if there is any reasonable
way to construe the ordinance as constitutional, and (4) before striking the ordinance, we must
conclude that it clearly appears to be unconstitutional. Hearn v. City of Overland
Park, 244
Kan. 638, 640, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).

We first examine the tests to be used when considering an ordinance subjected to a
void-for-vagueness challenge. In Hearn, we discussed the guidelines for evaluating a
constitutional challenge based on vagueness. In rejecting an attack on Overland Park's pit bull
ordinance, we distinguished the scrutiny afforded ordinances dealing with constitutional
guarantees from ordinances, such as Section 66-27(2), which do not deal with constitutionally
protected rights, saying:

"It is important to note that we are not dealing with an ordinance that
limits constitutionally protected conduct. Because the present ordinance does
not infringe upon explicit constitutional guarantees, such as freedom of speech,
the ordinance should be upheld unless it 'is impermissibly vague in all of its
applications.' [Citation omitted.] The plaintiffs must establish that the
ordinance is unconstitutional on its face, which means it must be demonstrated
to be '"invalid in toto--and therefore incapable of any valid application."'
[Citations omitted.] In order to establish that legislation is unconstitutional on
its face, the person challenging the legislation must establish that it is vague
'"not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in the sense that
no standard of conduct is specified at all."' [Citations omitted.]" 244 Kan. at
641.

The test here is whether Section 66-27(2) conveys sufficient definite warning and fair
notice as to the prohibited conduct in light of common understanding and practice. In
rejecting the contention that the anti-noise ordinance of the City of Rockford was
impermissibly vague and upholding its validity, the United States Supreme Court said:

"Condemned to the use of words, we can never expect mathematical certainty
from our language. The words of the Rockford ordinance are marked by
'flexibility and reasonable breadth, rather than meticulous specificity,'
[citation omitted] but we think it is clear what the ordinance as a whole
prohibits." Grayned v. City of Rockford, 408 U.S. 104, 110, 33 L. Ed. 2d
222, 92 S. Ct. 2294 (1972.)

With the test inquiries in place, we next turn to consider Boyles' void-for-vagueness
argument. Boyles relies primarily on City of Independence v. Richards, 666 S.W.2d
1 (Mo.
App. 1983). Richards was cited for having an old stove and scattered pots and cans in her
yard in an unsightly and annoying manner. She was convicted and fined $250 for violating an
ordinance that provided: "It shall be unlawful . . . to permit refuse to accumulate or remain
upon such premises to an extent or in such manner as to be unsightly, annoying,
dangerous or
detrimental to the life, health, property or safety of any person in the City." (Emphasis
added.) 666 S.W.2d at 4. The Richards court noted that the City of Independence
had not
claimed that the accumulation of items on Richards' property was dangerous or detrimental to
life or health. The complaint alleged only that the accumulation of refuse was unsightly and
annoying. The ordinance did not define either "unsightly" or "annoying."

Richards concluded:

"The term unsightly, . . . in the absence of definition, does not
suffice
as a standard of regulation. It conveys no determinable criterion, but rather
invites the vagary of personal response. Nor does the context of the ordinance
supply what otherwise lacks. The other operative terms, accumulation [also
undefined] and trash [defined] invest no more certainty to the context than the
ordinance conveys without them. It is the unsightly accumulation of trash the
enactment regulates, and not merely the accumulation of trash. It remains a
term without definition--and in the absence of definition or [as in City of
Collinsville v. Seiber, 82 Ill. App. 3d 719, 38 Ill. Dec. 75, 403 N.E.2d 90
(1980)] the aid of context--is too vague to be enforceable." 666 S.W.2d at 11.

We do not transfer the apprehension expressed by Richards to "unsightly
appearance"
in Section 66-27(2).

Here, Boyles was informed with specificity of the approximately 50 types of items
creating the unsightly appearance which he permitted to remain outside on his parking lot.

The enumeration of Section 66-27(2) categories, when linked to the detailed notice
Boyles received, focuses on and identifies the conduct deemed by the City as constituting a
nuisance. The ordinance reviewed by the Richards court contained no temporal
safeguard.
Richards observed that a "momentary blight incidental to the normal enjoyment of the
property--does not concern the police power." 666 S.W.2d at 8. The Richards court
was
troubled by this temporal defect. Richards opined: "That to avoid vagueness an
ordinance
which regulates sensory impression needs not only define the proscribed effect with sufficient
certainty, but also a duration after which the offensive condition becomes actionable." 666
S.W. 2d at 9.

Although we reject the Richards vagueness rationale as controlling here, we
agree with
the "attractive surroundings" view expressed in the opinion. Richards observed that,
particularly in urban areas, offensive and unsightly conditions do have an adverse effect on
people and "that beauty and attractive surroundings are important factors in the lives of the
public. The general welfare is promoted by action to insure the presence of such attractive
surroundings." Richards, 666 S.W. 2d at 5. Boyles' property is in an urban area.

Boyles also relies on City of Goodland v. Popejoy, 98 Kan. 183, 157 Pac. 410
(1916).
Popejoy had been found guilty of violating a city ordinance that purported to make it unlawful
for any person "'to deposit, put, throw, place, or allow to remain on any lot or lots owned or
occupied by such person . . . any tin cans, manure, ashes, garbage, slops, swill, refuse, filth,
offal, unwholesome substance, vegetable matter, or animal matter, or any rubbish whatever.'"
98 Kan. at 184. The Popejoy court found that the Goodland ordinance:

"is not directed against depositing tin cans, manure, ashes, garbage, and refuse
on private property under conditions which render them offensive to others or
detrimental to the public health, and is not directed against allowing the
enumerated articles and substances to remain on private property under
conditions which make them offensive or harmful." 98 Kan. at 184-85.

The problem with the Goodland ordinance was that "[t]he offense is complete if any of the
things mentioned be deposited or allowed to remain, whatever the quantity, circumstances, or
length of time." 98 Kan. at 185. Boyles contends that Section 66-27(2), like the Goodland
ordinance, lacks a durational requirement for the alleged condition.

The City counters Boyles' vagueness argument by contending that the word "unsightly"
is commonly understood. The City reasons that "unsightly" is a word familiar to Kansas
courts by inviting our attention to the following judicial references: Smith v.
Marshall, 225
Kan. 70, 74-76, 587 P.2d 320 (1978) (finding that plaintiff's injury was not unsightly
and did
not impair the appearance of plaintiff's leg, inquiring into the meaning of the phrase
"permanent disfigurement" under the Kansas Automobile Injury Reparations Act); State v.
Weniger, 9 Kan. App. 2d 705, 710, 687 P.2d 643, rev. denied 236 Kan. 877
(1984)
(addressing constitutional challenge to an ordinance requiring site screening around junkyards
and choosing the word unsightly to explain its decision: "Therefore, the word
'decorative'
merely limits the word 'fencing' which otherwise might include rows or piles or debris more
unsightly than the junkyard itself." [Emphasis added]); Lambert v. City of
Emporia, 5 Kan.
App. 2d 343, Syl. ¶ 1, 616 P.2d 1080 (1980) (using the word unsightly in
reiterating the rule
regarding a party wall and finding that "[t]his rule applies even though removal of the building
leaves the party wall exposed to the elements or unsightly").

The City argues that the reasoning found in Richards leads to the conclusion
that
Section 66-27(2) is not vague. The City's position is that its ordinance as a whole is
sufficiently definite because it includes in the definition of nuisance "[a]ny condition which
provides harborage for rats, mice, snakes and other vermin." Section 66-27(3). However,
Boyles was cited only under Section 66-27(2) for creating an unsightly appearance, rather than
creating health or safety dangers.

The City counters Boyles' temporal concerns advanced in Popejoy by pointing
to the
10-day abatement period provided by the Topeka nuisance ordinance. Section 66-31(1)
requires a violation notice to contain "[a]n order to abate the nuisance within ten calendar days
of the date of the violation notice or request a hearing within ten calendar days of the date of
the violation notice." The Code Compliance Order dated September 23, 1998, said that
Boyles had through October 13, 1998, to abate the nuisance condition. According to the City,
if Boyles had junk or refuse on his property for less than 10 days, he could not be punished
under the ordinance. The City maintains that Boyles ran afoul of Section 66-27(2) because his
practice is to display merchandise in his parking lot until he can sell it, which sometimes takes
more than 10 days. The Topeka ordinance abatement period supplies a temporal element to
Section 66-27(2) neither referenced in Richards nor found in the Goodland ordinance
discussed
in Popejoy.

Other jurisdictions have reviewed and rejected vagueness attacks on the use of
"unsightly" in nuisance ordinances. In Buhler v. Stone, 533 P.2d 292 (Utah 1975),
the
Supreme Court of Utah considered a charge of vagueness and uncertainty leveled against a
county ordinance. Buhler was a steel worker and farmer. He was advised that old cars and
materials on his property constituted a violation of the county ordinance and that he should
correct the situation within 30 days. Resolution was not forthcoming. Buhler filed a
declaratory judgment action challenging the ordinance. The ordinance in question was termed
"Control of unsightly wastes." It was a violation to have on private property:

"junk, scrap metal, waste paper products, discarded building materials, or any
unused abandoned vehicle, vehicles, or abandoned parts, machinery or
machinery parts, or other waste materials to be in or upon any yard, lot, or
piece of property within the unincorporated area of this County . . . whenever
said items shall be unsightly and in public view." (Emphasis added.) 533
P.2d at 293.

A divided court held, concerning the charge of vagueness, that an ordinance addressing
aesthetic conditions must necessarily be "in somewhat general terms because it is obviously
impossible to describe in detail every act and circumstance a statute or ordinance is intended to
deal with. . . . [P]ersons of ordinary intelligence, who desire to know the law and abide by it
can tell what their conduct should be." 533 P.2d at 294. We agree.

The Court of Appeals of New Mexico also addressed a vagueness challenge to
"unsightly" in New Mexico Mun. L., Inc. v. New Mexico Envir. Imp. Bd., 88 N.M.
201, 539
P.2d 221 (Ct. App. 1975). The court reviewed and upheld a regulation relating to storage
collection and transportation of solid waste that was attacked because it was so vague that men
of common intelligence would necessarily have to guess at its meaning. The regulations in
question required that any vehicle employed in the collection or transportation of waste and
refuse be "cleaned at such times and in such manner as to prevent offensive odors and
unsightliness." (Emphasis added.) 88 N.M. at 206. The challengers contended that
requiring
a vehicle to be cleaned when it was unsightly was constitutionally repugnant for vagueness.
The New Mexico Court of Appeals found no vagueness in the word "unsightliness" "when
read in conjunction with the stated basic purposes of the regulations." The question to be
asked was: "[W]hat might a reasonable person of average sensibilities consider to be an . . .
unsightly condition?" 88 N.M. at 208. The court concluded: "In this case, we hold that the
terms complained of are capable of reasonable application and are sufficient to limit and define
the duties of the individuals and entities which will be governed by them." 88 N.M. at 209.
A similar conclusion applies to Boyles and Section 66-27(2) here.

City of Collinsville v. Seiber, 82 Ill. App.3d 719, 403 N.E.2d 90 (1980), also
addressed a vagueness challenge to "unsightly." Seiber, the property owner, claimed the
nuisance provisions of the Collinsville ordinance were unconstitutionally vague, arguing that
the terms "unsightly" and "junk" were not defined. The Collinsville ordinance declared it a
nuisance for any person "[t]o permit or maintain an unsightly yard or premises where there is
an accumulation or deposit of any vehicle, equipment, junk, wrecked or disabled automobile,
trucks, material of any nature, waste or earth." 82 Ill. App. 3d at 721. In holding the
ordinance constitutional, the court said:

"It is apparent in the present case that the terms used are significantly
explained in the context of the ordinance as a whole. When the entire
ordinance in the case at bar is read in a sensible way, it is apparent that the
finding of a nuisance is not based solely on the 'unsightly' nature of the
premises, nor the 'junk' nature of the objects thereon, but also on the
'accumulation or deposit' of the various objects on open ground, which would
constitute clutter, a danger to children, and a possible breeding ground for
vermin and rodents." 82 Ill. App. 3d at 725-26.

Seiber operated a sanitation hauling service involving garbage and trash collection. He
bought and sold scrap iron metal and silver items. Photographs of the premises were
introduced at trial. The photographs showed a variety of items scattered about the premises:
motor vehicles, a disabled van, a truck bed, a kitchen sink, barrels, old tires, tree limbs,
weeds, twisted metal pieces, scraps of metal and iron, and other debris. The city clerk
testified that he visited the property and observed "garbage trucks, parts of garbage trucks,
storage of iron, scraps of iron, and general debris" at one location, and "abandoned garbage
trucks, high weeds, general disarray and debris at the other." 82 Ill. App. 3d at 722. There
was no evidence of either "a danger to children" or "a possible breeding ground for vermin
and rodents" in Seiber's trial. However, the court looked to the ordinance as a whole in
rejecting the vagueness challenge. The Richards court distinguished City of
Collinsville,
noting that the Missouri ordinance prohibited an unsightly premises simply because of its
unsightliness. Moreover, unlike the Collinsville ordinance, the "aid of context" was not found
in the Missouri ordinance. Richards, 666 S.W.2d at 10-11.

We next reference a cluster of cases in which various terms in common usage have
withstood constitutional attacks based on vagueness. See State v. Watson, 198 Ariz.
48, ___,
6 P.3d 752, 757-58 (Ct. App. 2000) (A Phoenix ordinance directed to curbing "blight," as
well as focusing on accumulations of garbage and debris to promote health and safety,
withstood a substantive due process challenge. Blight was defined in the ordinance as
"unsightly conditions." The court found that "protecting aesthetic values by avoiding visual
clutter is a constitutionally sanctioned objective for a municipality" and "that under an
objective standard a hypothetical reasonable person would regard the condition as unsightly.");
Howard v. City of Lincoln, 243 Neb. 5, 8-9, 497 N.W.2d 53 (1993) (The phrase
"weeds or
worthless vegetation" carried a common enough meaning and was not unconstitutionally
vague, and the ordinance provided definitions that were not confusing to the average citizen.);
People v. Beecher, 153 Misc. 2d 247, 251, 580 N.Y.S.2d 980 (1992) ("The statutory
term 'in
good repair' is not incapable of definition and is not a phrase which the common sense of a
reasonable person would not comprehend.").

The district court viewed as evidence more than 30 photos of the items that the City
claimed collectively created an unsightly appearance. We also have viewed the photos. We
cannot say that the district court's characterization was in error. The thrust of Section 66-27(2)
prohibited conditions that would deteriorate or debase the appearance and general
character of the neighborhood. We do not review Section 66-27(2) in a vacuum. The entire
Topeka public nuisance ordinance is to be considered. We believe in the context of the entire
ordinance, a reasonable person of average sensibilities could determine what was an unsightly
condition under Section 66-27(2). "Unsightly" is defined as "unpleasant or offensive to look
at; unattractive." The American Heritage Dictionary of the English Language 1404 (1980).
Matthews, Municipal Ordinances suggests that "there is no need to define words (in an
ordinance) whose meaning is found in an ordinary dictionary." 1 Matthews, Municipal
Ordinances § 3.02 at 41 (2d ed.). Under the facts here, Section 66-27(2) is not so vague as
to
render it unconstitutionally infirm as applied to Boyles. Boyles' due process rights under the
Fifth and Fourteenth Amendments to the United States Constitution have not been violated.

Findings of Fact and Conclusions of Law

We next consider the form of the district court's opinion. Boyles argues that the
district court erred by not making findings of fact and conclusions of law.

The district court's decision was in the form of a letter to the attorneys. It stated in
full:

"The Court has reviewed the record and arguments presented in this
Petition for Review and finds the decision of the City's Code Compliance
Services supported by substantial competent evidence. The ruling of City
Code Compliance Services, holding plaintiff in violation of Municipal
[Ordinance] 66-27(2) is affirmed. Costs to plaintiff."

In arguing that the district court's decision is inadequate in form, Boyles cites K.S.A.
2000 Supp. 60-252(a) and Supreme Court Rule 165 (2000 Kan. Ct. R. Annot. 200.) K.S.A.
2000 Supp. 60-252(a) provides in part: "In all actions tried upon the facts without a jury or
with an advisory jury or upon entering summary judgment or involuntary dismissal, the judge
shall find, and either orally or in writing state, the controlling facts and the judge's conclusions
of law thereon." Supreme Court Rule 165 reiterates a judge's responsibility: "In all contested
matters submitted to a judge without a jury including motions for summary judgment, the
judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles
controlling the decision."

Boyles points to In re Lett & Jackson, 7 Kan. App. 2d 329, 640 P.2d
1294, rev. denied
231 Kan. 800 (1982), which stands for the proposition that the appellate court's function
where the district court failed to make adequate findings and conclusions is "to review the
record to see whether it supports a presumption that the trial court found all the facts necessary
to support the judgment. [Citation omitted.]" 7 Kan. App. 2d at 332. A review of the
hearing transcript reveals that the constitutionality of Section 66-27(2), the principal issue
here, although raised by Boyles, was not considered by the district court. Boyles emphasized
the potential for arbitrary and discriminating enforcement. His attorney argued that the
evidence introduced by the City at the administrative hearing, depictions of merchandise
outside of Boyles' business, ought to be compared with depictions of merchandise outside
other businesses. Counsel referenced K-Mart and Sutherland's. Boyles' position in the district
court, which he repeated from the administrative hearing, was that: (1) he was cited under the
ordinance for displaying merchandise outside, (2) the large retailers were not cited for the
same conduct, and (3) the difference was that his merchandise was used. The court said: "If
there are five or six businesses violating the ordinance, they have to start with one, don't
they?" The district court declared that the only issue was whether the appearance of Boyles'
business constituted a nuisance and rejected evidence of other similar appearing businesses as
irrelevant.

Thus, review of the record supports a presumption that the district court found all the
facts necessary to support a judgment based on the sole question of whether the appearance of
Boyles' business constituted a nuisance.

Substantial Competent Evidence

We turn to a review of the final issue raised on appeal. Did the district court err in
finding that the code compliance order was supported by substantial competent evidence?

This issue represents another attempt by Boyles to fortify his constitutional argument
with a challenge to the sufficiency of the evidence or the sufficiency of the various tribunals'
opinions of the evidence. Like Issue 2, this issue is neither essential to our consideration of
the central issue of constitutionality nor a sound argument. Boyles argues that the evidence
was not sufficient to establish that the items on his property had an unsightly appearance. His
reasoning, however, is not based on evidence. Instead, he argues that the problem is that
"unsightly" is subjective and lacks any common understanding. Thus, he repeats his
constitutional challenge to Section 66-27(2).

Affirmed.

ALLEGRUCCI, J., dissenting: The issue is whether Section 66-27(2) of the city's
ordinance is void for vagueness. The answer lies in whether the term "an unsightly
appearance" is so vague and subjective to render enforcement unconstitutional.

"It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important values. First, because
we assume that man is free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective
basis, with
the attendant dangers of arbitrary and discriminatory application. Third, but related, where a
vague statute 'abut[s] upon sensitive areas of basic First Amendment freedoms,' it 'operates to
inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to '"steer
far wider of the unlawful zone" . . . than if the boundaries of the forbidden areas were clearly
marked.'"

This court has stated that "[a]t its heart the test for vagueness is a commonsense
determination
of fundamental fairness." State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977). "[I]n
determining whether an ordinance is void for vagueness, the following two inquiries are
appropriate: '(1) whether the ordinance gives fair warning to those persons potentially subject
to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory
enforcement.' [Citations omitted.]" City of Wichita v. Wallace, 246 Kan. 253, 259,
788 P.2d
270 (1990). In my view, Section 66-27(2) does neither.

The ordinance at issue in City of Rockford was an anti-noise ordinance
prohibiting any
person making or assisting in the making of noise adjacent to a school "which disturbs or tends
to disturb" the school classes or sessions. The United States Supreme Court found the
vagueness question to be a close call. 408 U.S. at 109. The Court stated: "Were we left with
just the words of the ordinance, we might be troubled by the imprecision of the phrase 'tends
to disturb.'" 408 U.S. at 111. However, because the ordinance specified disturbance of school
activity, the Court concluded: "We do not have here a vague, general 'breach of the peace'
ordinance, but a statute written specifically for the school context, where the prohibited
disturbances are easily measured by their impact on the normal activities of the school." 408
U.S. at 112. Given that context, the Supreme Court concluded it gave fair notice of what was
prohibited. 408 U.S. at 114.

It would serve no useful purpose here to review the cases cited by the majority. In my
view, each of the cases can be distinguished from the present case. Some deal with
administrative regulations, others with ordinances that have different wording or additional
language from the Topeka ordinance.

Here, Boyles was charged with violating a specific section, Section 66-27(2). He was
not charged with violating any other section of the ordinance. The compliance complaint
stated that Boyles' violation was for maintaining items on his property which created an
unsightly appearance. Maintaining the items is not a nuisance. The nuisance, and violation,
occurs only when the items are unsightly.

At the hearing before the district court, the city prosecutor stated:

"I think the issue before the Court would be can this man keep these--this
merchandise
in his parking lot as opposed to in a building.

"He has been cited for a violation of the City ordinance that says­ Well, we
have listed
a bunch of stuff that's pretty much just used merchandise in the parking lot. And it constitutes a
nuisance because it has an unsightly appearance. And I think the issue before the Court is are
we correct or are we wrong."

Later, the following colloquy occurred between the court and prosecutor:

"THE COURT: I'm trying to figure out why you think it's a nuisance.

"MS. MURDRICK: The unsightly is part of it.

"THE COURT: Okay, and-

"MS. MURDRICK: We deal with weeds and animals and whatever. This
is a
provision that deals with unsightly appearance, which is what our city council has decided to
include within the ordinance provisions.

"THE COURT: So the problem with it is that it's not pretty.

"MS. MURDRICK: No, it's not. That's exactly right. It's unsightly."

I disagree with the majority that the entire Topeka ordinance is to be considered in
determining the vagueness of Section 66-27(2). Further, I am at a loss as to how anyone can
determine the meaning of "unsightly appearance" by considering the context of the entire
ordinance. There is nothing in the ordinance that gives any clue as to the meaning of
"unsightly appearance." "Unsightly" is not defined or limited in any way. The dictionary
definition provided by the majority does not limit its general meaning and provides no less
subjective standard than the word itself.

I find City of Independence v. Richards, 666 S.W.2d 1 (Mo. App. 1983),
directly on
point and persuasive. The Missouri Court of Appeals reversed Richards' conviction for
violating an ordinance with language similar to the ordinance here.

The Missouri Court of Appeals noted that it had not been alleged that Richards'
accumulation of items on her property was dangerous or detrimental to life or health. 666
S.W.2d at 7. The complaint alleged only that the accumulation of refuse was unsightly and
annoying. There was no ordinance definition for either "unsightly" or "annoying." The
Missouri court considered and rejected the proposition that "accumulation," which removes the
possibility of prosecution for momentary visual blight, reduced the uncertainty of the
ordinance's standard. 666 S.W.2d at 8-9. Among the aesthetic regulation cases reviewed by
the Missouri court was City of Collinsville v. Seiber, 82 Ill. App. 3d 719, 38 Ill. Dec.
75, 403
N.E.2d 90 (1980), which involved a municipal ordinance making it a misdemeanor for any
person to "'maintain an unsightly yard or premises where there is an accumulation . . .
of . . .
junk . . . ."' Richards, 666 S.W.2d at 10. Finding that the purpose of
regulating unsightly
property necessarily embraced health and safety issues, the Illinois Court of Appeals declined
to hold that the ordinance was unconstitutionally vague. City of Collinsville, 82 Ill.
App. 3d at
725-26.

Unlike the Illinois court, the Missouri Court of Appeals refused to supply "context or
ulterior reference to infuse meaning to unsightly, accumulation, or other
undefined terms" in
the Independence ordinance. Richards, 666 S.W.2d at 11. In particular, the Missouri
court
noted that the Independence ordinance provided for citation of a person who permitted refuse
to accumulate or remain upon his or her premises to an extent or in such manner as to be
dangerous or detrimental to life, health, property or safety of any person but that Richards was
cited for permitting refuse to accumulate so that it was simply unsightly. The court stated:

"There is no precondition that the unsightly condition be a source of danger, or a
detriment to
the life, health, property or safety of any person. The ordinance terms are in the
disjunctive--and render actionable an unsightly premise, for
unsightliness--simpliciter. [They render
actionable, quite separately, an accumulation of trash detrimental to life, health, or safety.] . . .
The prosecutor concedes that the ordinance clause the complaint undertakes to enforce has no
motive other than to regulate against unsightly use of property--that breach of the
public safety
was neither charged nor at stake." Richards, 666 S.W.2d at 11.

The Missouri court concluded:

"The term unsightly . . . in the absence of definition, does not suffice
as a standard of
regulation. It conveys no determinable criterion, but rather invites the vagary of personal
response. Nor does the context of the ordinance supply what otherwise lacks. The other
operative terms, accumulation . . . and trash . . . invest no more certainty
to the context than
the ordinance conveys without them. It is the unsightly accumulation of trash the
enactment
regulates, and not merely the accumulation of trash. It remains a term without definition--and in
the absence of definition or [as in City of Collinsville . . .] the aid of context--is too
vague to be
enforceable.

"An average person presented with the terms of the ordinance and careful
compliance
will not understand from the text whether a proposed conduct will incur a penalty. 'Ordinances
should not be so worded as to leave their substantive elements to the caprices of either judge or
jury.' [Citation omitted.] Such ordinances are void for vagueness and uncertainty. [Citations
omitted.]" Richards, 666 S.W.2d at 11.

Independence's ordinance , like the Topeka ordinance, contained sections or provisions
concerning other nuisances, including conditions detrimental to health and safety. However,
Richards, like Boyles, was cited strictly on aesthetic grounds and not on any other grounds.
The Missouri court expressly rejected the contention that any other clause or provision would
furnish sufficient certainty to the portion of the ordinance under which Richards was charged.
See Richards, 666 S.W.2d at 11. The same is true as to Boyles. The only dividing
line
between acceptable items on a person's property and unacceptable items is drawn at items that
create "an unsightly appearance." Section 66-27(2). As the Missouri court stated:
"[U]nsightly . . . in the absence of definition, does not suffice as a standard of regulation. It
conveys no determinable criterion, but rather invites the vagary of personal response."
Richards, 666 S.W.2d at 11.

In Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855
(1983), the
Supreme Court struck down as vague a California loitering statue which required a loiterer to
provide "credible and reliable" identification. In so doing, the Supreme Court held:
"Although the [void-for-vagueness] doctrine focuses both on actual notice to citizens and
arbitrary enforcement, . . . the more important aspect of vagueness doctrine 'is not actual
notice, but the other principal element of the doctrine--the requirement that a legislature
establish minimal guidelines to govern law enforcement.' [Citation omitted.]" 461 U.S. at
357-58.

Section 66-27(2) includes no health or safety issues. It is aimed solely at aesthetic
regulations and gives no fair warning of proscribed conduct to persons subject to it. Unsightly
appearance, like beauty, exists only in the eye of the beholder. The term does not define a
standard whereby a person of ordinary intelligence may determine whether he or she is
violating the ordinance. The term is incapable of a definition which would provide a
meaningful standard to prevent arbitrary enforcement. As in the Richards case, it
contains no
safeguard against arbitrary and discriminatory enforcement. Section 66-27(2) is prone to
unjust application, violates commonsense fundamental fairness, and is unconstitutional.